The Name Game After Divorce: Married Name or Maiden Name

Posted by Daniel Clement on January 31, 2008
Incident to the divorce, the wife has the option of returning to the use of her maiden name. The decision to return to a maiden name is highly personal.

The blog,   Seven Secrets to a Successful Divorce, offers up one woman’s struggle with the dilemma over her name.
Initially decided to return to my maiden name and asked for it to be changed at my final divorce hearing. But then something strange happened. As the months passed, I continued to use my married last name, putting off changing my driver's license and credit cards. Something just did not feel right about changing my name back to the name I once used long ago. I felt like I wasn’t that person anymore, yet I also did not feel comfortable using my married last name. I certainly was not the same person who used that name either.

In the end I decided to give myself a new last name. One that I choose. I shortened my married last name and gave myself a brand new identity. I went to court and legally changed my name. It felt right and it was empowering to begin my new life after divorce with my own chosen identity, not the name I was born with and not the name I got from being married.

There are several issues to consider when deciding whether or not to keep your married name after a divorce. Here are few:

1. Your children. Do you want to avoid confusion at school by keeping the same last name as your kids?

2. Paperwork. Changing your name means changing your driver's license, bank accounts, credit cards and countless other documents. Expect to spend time and energy taking care of this.

3. Have you established yourself professionally with your married name? If so you may not want to change it.

In the end, make sure it is your own decision to change or not change your last name. Don't give into pressure from your ex, who may object to you using your married name. It is perfectly legal to continue to use your married name after a divorce. If you no longer wish to use your married name, then make sure you are comfortable going back to your maiden name. If not, you may want to do like I did and create your very own new last name.

Clearly, there is no wrong or right answer to the name game.  Your name goes to the very nature of your identity.    If, later, you feel you made the wrong choice, you can even start another action to legally change your name.

What Not To Do During the Divorce: Rudy Giuliani, a Case Study

Posted by Daniel Clement on January 29, 2008

In an interesting piece on the Huffington Post, Stacy Schneider opines that Rudy Giuliani’s “Nasty Divorce” reveals why he may be unfit to be president. Politics aside, the former mayor’s divorce is a primer on what not to do during a divorce.

The divorce was a vicious, go-for-the-jugular, corrosive slugfest, with Rudy seemingly pulling the sharpest punches of the pair. His ongoing public display of his mistress's affections was certainly unbecoming of an elected official. But watching an uncaring father of two young children consistently display his contempt for his own family on the television news was both shocking and heartbreaking.

Schneider highlights the mistakes made by Giuliani, to which I add my thoughts.

  • Rudy publicly humiliates his wife by announcing his divorce plans to the media, before privately informing her and their children. He then openly admitted having a romance with Judy Nathan, now his third wife, while he was still married.

Is it no surprise that Rudy is estranged from his children? When asked how I tell my children that I am getting divorced, I doubt anyone would suggest holding a press conference. The children should have been privately told that their parents were divorcing.

  • Next the mayor's attorney, famed celebrity divorce lawyer, Raoul Felder viciously attacked Donna Hanover with Rudy's approval, publicly describing her as "howling like a stuck pig."

There really is no place for name calling or finger pointing. This child- like behavior may sell newspapers, but, it only adds to the animosity, without any tangible or economic benefit.

  • Further, it seemed to be a big priority of Rudy's to maintain his own comfort in carrying on his liaison with Judy Nathan at the expense of his children. This was evident when a judge barred her from continuing her frequent visits to the mayor's mansion, ostensibly because of its effect on the children, who were living there with their mother. At one point during divorce proceedings, Rudy was denied joint custody of his son because he insisted on having Judy present during the children's overnight visits at his home.

This is a clear case of not acting in the best interests of the children. Giuliani put his desire to be with his girlfriend over and above the needs of the children. The Mayor would have been better advised to spend alone time with his children to re-establish their bonds.

I can only imagine the loss of trust and sense of betrayal his children felt after learning that their father left their mother for another woman. The feelings had to be transformed to frustration and anger when the children, while visiting their father, were forced to spend time with his new girlfriend.

Since we learn from our leaders, Giuliani’s divorce is a case book example of how to alienate your children as part of a divorce. This is a lesson not to be followed.

Q&A on Lex Blog

Posted by Daniel Clement on January 23, 2008
I had the pleasure of being interviewed by Rob La Gatta of Lex Blog on my experiences as a blogger. You can read the interview here.

This interview is part of a series Rob is doing, in which he explores all aspects of blogging and legal practice.

How to Prevent Divorce From Hurting Your Credit

Posted by Daniel Clement on January 22, 2008
Your credit rating could be hurt by divorce. As part of divorce, you distribute not only your assets, but your debts and obligations as well.

An in-artfully drawn marital agreement may provide that one spouse will assume the liability for a joint debt. However, an agreement apportioning joint liability between you and your spouse is not binding on the creditor. The creditor can attempt to collect the debt from either or both parties. As pointed out in a Fox Business article, “The mistaken assumption that you're off the hook for financial obligations can result in a series of missed payments that may trash your credit score for years.”

A well written agreement would provide that the debt is fully paid or transferred into the name of the spouse who is going to be responsible for paying it.

The Fox article does provide some useful information about protecting your credit rating:.

Begin by converting your credit card accounts. People most often miss payments on this type of debt, rather than the loans that keep a roof over their head and wheels under their feet.

Next, work on refinancing your mortgage and your car loan. Granted, this is going to be more difficult, because the bank will want just one person to accept the loan in his or her name -- which may not be possible if that person's salary isn't enough to qualify for the loan. In cases like these, it might be easier to sell the car or the house, split the money and move on. That way, you're guaranteed not to have credit damages caused by a vengeful ex-spouse.

"Remember that when you're getting divorced from your spouse, you're also divorcing yourself from emotional attachment to assets," Ulzheimer said.
You would also be wise to opt out of receiving pre-screened offers for credit or insurance. A spiteful ex-wife or ex-husband may be tempted to apply for a loan in your name just to ruin your credit. Go to the consumer credit reporting industry's official Web site for details. Visit the Web site.

Finally, start planning for all this at least six months to a year before you file, or as early as possible before the divorce gets ugly. Once any problems begin, you and your embittered other half will have a hard time thinking logically. If this seems like a lot of work at the front end of your separation, remember that it will save you up to 10 years of credit-related headaches in the aftermath


New Clementlaw web site

Posted by Daniel Clement on January 17, 2008

I just wanted to announce the debut of the new and much improved Clementlaw web-site.

The Practice Areas part of the site provides some useful and practical information about divorce, separation, child custody, equitable distribution, the different types of marital agreements and other areas under the broad umbrella of family law practice.

You are invited to explore. I would love to hear your comments as to its user friendliness and readability.

Post Nuptial Agreements Popularity Continues

Posted by Daniel Clement on January 14, 2008
Citing a recent New York Times article, Victor Medina in the New Jersey Divorce and Family Law Blog, comments on the rise in the use of post-nuptial agreements, a trend I noted several months ago, here.

Mr. Medina gives a great description of what post- nuptial agreements really are:

What are “post-nuptial agreements”? Well, unlike pre-nuptial agreements, which deal with parties interested in getting married before they’re actually married, and unlike property settlement agreements, which deal with parties interested in not being married after they’re actually married…post nuptial agreements are intended for a married couple who did not previously enter into a premarital agreement and, despite wanting to be married, would like to plan for the division of property in case they later get divorced.

Against this back drop, he provides the minimum requirements for a post-nuptial agreement to be upheld in New Jersey.

1) There needs to be full disclosure by the parties.
2) Each party must have independent representation by his/her own lawyer.
3) There needs to exist the absence of coercion or duress.
4) The terms must be fair and equitable.

In New York, the requirements are quite similar, the agreement must be properly signed and acknowledged and entered into without fraud, coercion or duress. The agreement cannot be unconscionable.

One way of assuring that a martial agreement will be upheld, is to have full disclosure of assets, liabilities and income. In addition, the parties should each be independently represented by counsel.

While all agreements are subject to attack and there is no certainty that any agreement will be upheld, New York courts encourage parties in a matrimonial setting, to put their affairs in order by written agreement. The terms of a valid martial agreement will be enforced and there is a heavy burden on the party attacking the agreement to show why it should be set aside.




Mother's Attempt to Flee New York to Deprive Court of Custody Jurisdiction Fails

Posted by Daniel Clement on January 09, 2008
I am continuing to explore the recent decisions of the Appellate Division.

In re Michael McC., v Manuela A, a mother took her child and fled from New York and went to Italy during a pending child custody case in a deliberate attempt to deprive New York of jurisdiction to hear the case. After conducting an exhaustive study of the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA”), the Appellate Division found that New York would retain jurisdiction to decide custody matter.

UCCJEA and governs virtually every custody proceeding. It is designed to eliminate jurisdictional competition between courts in matters of child custody and the substantial confusion that arose under its predecessor, the UCCJA. Thus, under New York's UCCJEA, a New York court has jurisdiction to modify a child custody determination made by a court of another state if this state is the "home state" of the child. Moreover, the New York court continues to maintain exclusive jurisdiction until a determination is made that neither the child, nor the child and one parent have a significant connection with this state, or where the court determines that neither the child, and neither of the child's parents reside in the state.

Further, a state is considered to be the child's "home state" pursuant to DRL 75-a(7), where the child has been wrongfully removed to another jurisdiction. In such instances, the child's stay outside of New York is considered as nothing more than a period of temporary absence and as part of the six-month period. . . .The fact that a custodial parent flees in the middle of a custody litigation commenced properly in New York simply does not deprive the New York courts of subject matter jurisdiction to issue an order concerning custody, visitation, and related issues.

Here, there is uncontroverted evidence that the parties, mother, father and child were living in New York since January 2005, a period of 19 months prior to the mother's petition for a modification of the initial custody order, and 22 months prior to the father's cross petition for sole custody. Thus, the record establishes that New York has jurisdiction in this custody modification proceeding. Moreover, the mother's flight to Italy cannot deprive New York of continuing jurisdiction in this proceeding so long as the father resides here.

Though the decision was well reasoned and supported by law, I cannot help but wonder if the Court was, at least, in part, motivated by its dis-pleasure over the mother who, facing a potential adverse decision in a New York court, “forum shopped” and fled to a jurisdiction where she thought she would obtain a more favorable result.

About

Posted by Admin on January 08, 2008
This blog was created as a resource of news, information, and analysis on divorce and family law for the people of New York.

Daniel Clement

Daniel is a New York divorce attorney and principal in the Law Offices of Daniel E. Clement. He has practiced law since 1986, and has written and lectured on various family law issues. In addition, he has been interviewed as an expert in the field of family law on television, radio and in the written press. Feel free to contact Dan Clement via email at Divorcereport@clementlaw.com.





Practice areas:
  • Divorce
  • Annulment
  • Equitable distribution issues
  • Child custody
  • Child support
  • Visitation
  • Prenuptial, post nuptial and separation agreements.
Education and Affiliations:
  • Graduate of Brooklyn Law School and the State University of New York at Albany.
  • Member of the New York City Bar Association, where he is a member of the Matrimonial Committee.
  • Worked as an Arbitrator in the Small Claims Court of the City of New York and serves on the board of several charitable organizations.

Does Cohabitation Terminate the Payment of Maintenance

Posted by Daniel Clement on January 08, 2008
While I took a short break from writing this blog, the Appellate Divisions have been very active, having decided several matrimonial cases of interest. In the next couple of posts, I will try to catch-up and discuss some of these recently decided cases.

In Graev v. Graev, the First Department, sought to answer the question, when does an ex-spouse’s cohabitation with another adult result in a forfeiture of maintenance payments?

Domestic Relations Law § 248 allows the court to eliminate maintenance upon proof that the wife is habitually living with another man and holding herself out as his wife. What happens when the parties have an agreement that merely provides that maintenance is to stop when the recipient of the spousal maintenance cohabitates with someone for some period of time?

In Graev, the parties had a settlement agreement which provided that maintenance would terminate upon “the cohabitation of the Wife with an unrelated adult for a period of sixty (60) consecutive days.”

The Court in a 3-2 decision, certain to appealed to the New York’s highest court, the Court of Appeals, ruled that the merely living together is not cohabitation sufficient to terminate maintenance. In order to terminate the maintenance, the Court ruled there must an economic component to the cohabitation.

New York courts have uniformly construed the term "cohabitation," when used in agreements governing the modification of support obligations, as more than a romantic relationship or series of nights spent together. . . . However, New York case law interpreting similar clauses looks to the sharing of finances to determine whether parties are "cohabitating." This analysis makes sense, given the underlying question of whether the relationship at issue is the type of "changed circumstances" which would render a support obligation unjust

Two Justices, in dissent, criticized the majority for not giving the word “cohabitation” its plain dictionary meaning.

How and whether they pooled their resources, a factor significantly relied upon by the majority, is not determinative of cohabitation. It ill behooves any court to impose such a burden on the meaning of cohabitation, a fairly plain contract term. . . In no dictionary definition of the term is the sharing of expenses an essential component of cohabitation or even a characteristic of the relationship. "[C]ourts often look to the dictionary to determine the ordinary meaning of a disputed term" . . . Nor, as noted, is it the statutory standard for terminating maintenance as set forth in Domestic Relations Law § 248

Ultimately, the Court of Appeals will decide if merely living together is enough to constitute cohabitation sufficient to terminate the maintenance payments or whether there must be something more, i.e., a sharing of expenses. In the meantime, draftsmen of agreements need be particularly careful to specifically define all of the events that terminate the payment maintenance.